Case: Penate v. Martoglio, 2024 ONCA 166 (CanLII)

Keywords: medical malpractice; jury trial; removing jury; adequacy of reasons; Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108.

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Appellant, Mr. Norman Penate, suffers a severe brain injury “around the time of his birth”, resulting in the “near total destruction of his brain”. (See paras. 6-10). Mr. Penate, his parents, and siblings (the “Appellants”) sue the Respondent hospital, physicians, and nurses for medical malpractice. (See para. 11). The Appellants elect to proceed by way of jury trial. (See para. 12).

At the conclusion of the 25-day trial, the Trial Judge (Ferguson J.) unilaterally decides to discharge the jury and announces she will decide the case herself – ultimately, she rules against the Appellants, finding they failed to prove medical malpractice. (See paras. 3, 12-16).

The Trial Judge later releases five-paragraph reasons for her decision to discharge the jury. As later described by the Court of Appeal, the Trial Judge “concluded that the Penates’ counsel made many improper comments that were cumulatively impossible to correct and required discharging the jury because any corrective instruction would have been ‘unwieldy and ineffective.’” (See para. 15).

The Appellants appeal on the basis that the Trial Judge did not provide adequate reasons for her decision. The Court of Appeal (Tulloch C.J.O., Lauwers and Paciocco JJ.A.) allows the appeal, finding the Trial Judge’s reasons prevented meaningful review of the decision to discharge the jury. The Court of Appeal orders a new trial. (See para. 5).


As stated by the Court of Appeal, “[c]ivil litigants deserve to know why a trial judge rules against them”. The decision sends a clear signal to Canadian trial judges – there is a requirement to issue reasons that litigants can understand, and that the Court of Appeal can review. (See para. 1).

The Court of Appeal described the “fundamental substantive right” of civil litigants to have a trial by jury, observing that trial judges “should not lightly interfere with it” and that the discharge of a jury is a “drastic remedy of last resort”. (See para. 18). The decision to discharge a civil jury is made pursuant to a two-step test, in which the trial judge must determine whether:

  1. counsel’s comments prejudiced the opposing party; and
  2. the prejudice was so severe that issuing a corrective instruction to the jury would not cure it. (See para. 19, citing Marthe v. O’Connor, 2021 ONCA 790 at para. 46).

A trial judge’s decision to discharge a civil jury is discretionary, and entitled to deference except where the trial judge “acted on a wrong principle, arbitrarily, capriciously, or unreasonably”. (See paras. 19-20).

Importantly, as noted by the Court of Appeal, deference requires adequate reasons. (See para. 20). What then, is required for reasons to be considered “adequate”? The Court of Appeal provided a detailed summary of principles at paras. 21-24 of its own reasons. Fundamentally, the Court found that “civil litigants deserve reasons that explain what the trial judge has decided, that can be reasonably understood, and that an appellate court can meaningfully review”. (See para. 21).

In the context of discretionary decisions, the Court noted that adequate reasons are “especially necessary to justify…decisions that severely impact litigants’ important rights”. (See para. 21, citing R. v. Sahdev, 2017 ONCA 900, at paras. 43-44; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 133). Furthermore, the Court observed that “[c]onclusory reasons are not adequate” – that reasons must be “responsive” to demonstrate the court has “actually listened to the parties” (i.e., “they must address the parties’ key arguments and the key, live issues in the case” and make “any necessary findings concerning those issues”). (See para. 22, emphasis in original).

The Court of Appeal made it clear that reasons must not merely repeat “stock phrases” or “repeat the legal standard and state a bottom-line conclusion”. (See para. 22). The Court also cautioned against reading in “reasons that could have been given but were not”. Whereas a court may review the record to make a trial judge’s reasons “more comprehensible”, a reviewing court’s ability to “supplement the trial judge’s reasons…has limits”. (See paras. 23-24).

In this case, the Court of Appeal found the Trial Judge did not provide the Appellants with the reasons they deserved – “[h]er reasons for discharging the jury neither explained which comments were prejudicial and why, nor why a corrective instruction was an inadequate remedy. These inadequate reasons prevent the [Appellants] from understanding her decision to take away their right to a jury trial and prevent this Court from meaningfully reviewing it.” (See para. 26). The Court of Appeal found that these reasons could not be salvaged by reviewing the record. (See paras. 31-34).

Finally, the Court of Appeal determined that a new trial was necessary in these circumstances (i.e., where the Appellants were deprived of their fundamental right to a jury trial and where the outcome determined by the Trial Judge was not “inevitable”). (See paras. 36-37).

Counsel for the Appellants: Gavin MacKenzie (MacKenzie Barristers Professional Corporation, Ottawa), Brooke MacKenzie (St. Lawrence Barristers PC, Toronto), Hilik Elmaleh and Jeremy Syrtash (Sommers Roth & Elmaleh Professional Corporation, Toronto)

Counsel for the Respondents, A. Martoglio, G. Liu, and Mary Beveridge and David Beveridge as Executors of the Estate of Donald Martyn: Cynthia Kuehl, Adam Patenaude, and Carly Moore (Lerners LLP, Toronto)

Counsel for the Respondents, St. Michael’s Hospital, S. King-Forbes, and M. George: Katharine Byrick and Veronica Sjolin (Borden Ladner Gervais LLP, Toronto)

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